ACLU: Words Alone Crime Is Disturbing

BOULDER, Colo. (AP) – Boulder County last month landed its first jury conviction on felony hate-crime charges and — in a separate trial related to the same University Hill incident — prosecutors won a rare conviction on misdemeanor bias-motivated harassment charges for a man’s use of words alone.

Since the pair of hate-crime trials in April, Boulder County District Attorney Stan Garnett said he’s fielded a couple dozen calls or e-mails from residents concerned that such prosecutions set a dangerous precedent and questioning whether the law threatens their First Amendment rights.

Boulder County District Attorney Stan Garnett crimes statute does not infringe on anyone’s civil liberties, and his office intends to continue charging and prosecuting violators under the law as long as such behavior continues.

“We have been trying to get a handle on all the alcohol-fueled mayhem we get on University Hill, and a lot of that is infused with racial taunts,” Garnett said. “Where we believe we can and have evidence to prove a violation of the statute, we won’t hesitate to prosecute a violation of the crime.”

Zachrey Harris, 23, was convicted April 6 of ethnic intimidation, a class 1 misdemeanor, for using racial slurs and comments — like “get out of my country” — during an argument that left University of Colorado student Oluyibi Ogundipe with broken bones in his face in September. Harris was not accused of assaulting the Nigerian native, but police said he was the main person using the hateful language that fueled the fight.

Harris’ conviction on the misdemeanor charge was the first of its kind in Boulder County, and legal experts said it was a rare prosecution in the state in that Harris was accused of using words alone and not resorting to physical violence.

His co-defendant, Joseph Coy, 23, of Lafayette, was convicted two weeks later of second-degree assault and bias-motivated crime, both felonies, for participating in the racial taunts against Ogundipe and his Saudi Arabian friend, Ahmad Abdulkareem, and then chasing them down and knocking Ogundipe unconscious.

Coy’s case marked the first-ever conviction on felony hate-crime charges in Boulder County. Other people — like Phillip Martinez, who was accused of assault and ethnic intimidation in 2006 for hurling racial slurs at a black CU student before breaking his jaw — have been arrested on suspicion of the felony bias-motivated crime. But, like in Martinez’s case when jurors found him guilty of assault but not of the hate-crime enhancement, those charges have not stuck.

“One of the difficulties is that you have to establish that the reason the person committed the crime was due to race or gender,” said Thomas Raynes, executive director of the Colorado District Attorneys’ Council. “That’s a difficult thing to prove.”

Under Colorado’s bias-motivated crimes law that was last amended in 2005, nine people in the state last year were convicted under the misdemeanor version of the law and 18 people were convicted of felony bias-motivated crime, according to Raynes.

“Given the thousands and thousands of people that are prosecuted every year, this is not an offense that is charged in a high number of cases,” Raynes said.

Garnett said one of the reasons he believes more people haven’t been charged under the bias-motivated crimes statute is that prosecutors aren’t sure how easy the cases are to prove. The primary difficulty is establishing what was in someone’s mind at any given moment, Garnett said.

“You have to show the intent to intimidate because of race,” he said.

Judd Golden, chairman of Boulder County’s chapter of the American Civil Liberties Union, said his group must balance its duties to protect people from discrimination while also protecting people’s rights. He said that when hateful words are matched with violent conduct, the ACLU believes there’s evidence enough to prove a crime.

But, Golden said, he finds “somewhat disturbing” the notion that “words can be a crime,” quoting prosecutor Ken Kupfner from his opening statement in Harris’ trial.

“The ACLU would say that the government should err on the side of not criminalizing speech and speech alone,” Golden said, adding that racial slurs aren’t always used with the intent to harass or intimidate. “There are white rap guys who hang out with black guys who say that all the time with endearment.”

And, he said, even if a person does make statements with hateful intentions — like the infamous protestors from the Westboro Baptist Church who picket outside funerals — they shouldn’t be thrown in jail.

“You have to find intent and start going into the hearts of people, and that’s what the government can’t do,” Golden said.

Garnett countered that while the First Amendment protects free speech, the Supreme Court has recognized that the government can prohibit some speech that might cause a breach of the peace — like yelling fire in a theater when there isn’t one.

“You don’t have a First Amendment right to use expletives in certain situations if they might provoke violence,” he said.

Garnett said district attorneys across the state have been prosecuting harassment cases for decades, and people only tend to raise the First Amendment issue when bias-motivation is involved.

“From the legal perspective, it’s not different from any other harassment,” he said. “You can think what you want to think, or say what you want to say, but you can’t harm another person or harass and intimidate another person for any purpose.”